Terms and Conditions
Effective Date: June 22, 2018
Welcome to the EyeTemp websites and mobile application. Eyetemp, maker of the Wi-Fi activated device designed to monitor temperature and time on heated and non heated household items (“Products”). The device is paired with a mobile application, which sends alerts and reminders through notifications and is easily rechargeable via a USB cable. The device wirelessly monitors potentially dangerous heat levels on most household items including kitchen appliances, candles, space heaters, small appliances and many more. If items are left on for too long or reach dangerous temperatures, Eyetemp will send out alerts to the users phone, emergency contacts if needed.
THE TERMS INCLUDE (1) YOUR AGREEMENT THAT THE EYETEMP SERVICES ARE PROVIDED “AS IS” AND WITHOUT WARRANTY (SECTION 13); (2) YOUR CONSENT TO RELEASE EYETEMP FROM LIABILITY BASED ON CLAIMS BETWEEN USERSAND GENERALLY; AND (3) YOUR AGREEMENT TO INDEMNIFY EYETEMP FOR YOUR USE OF, OR INABILITY TO USE, THE SERVICES (SECTION 12).
PLEASE BE AWARE THAT SECTION 17 OF THE TERMS, BELOW, CONTAINS PROVISIONS GOVERNING HOW CLAIMS THAT YOU AND WE HAVE AGAINST EACH OTHER ARE RESOLVED, INCLUDING, WITHOUT LIMITATION, ANY CLAIMS THAT AROSE OR WERE ASSERTED PRIOR TO THE EFFECTIVE DATE OF THIS AGREEMENT. IN PARTICULAR, IT CONTAINS AN ARBITRATION AGREEMENT WHICH WILL, WITH LIMITED EXCEPTIONS, REQUIRE DISPUTES BETWEEN US TO BE SUBMITTED TO BINDING AND FINAL ARBITRATION. UNLESS YOU OPT OUT OF THE ARBITRATION AGREEMENT: (1) YOU WILL ONLY BE PERMITTED TO PURSUE CLAIMS AND SEEK RELIEF AGAINST US ON AN INDIVIDUAL BASIS, NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY CLASS OR REPRESENTATIVE ACTION OR PROCEEDING; AND (2) YOU ARE WAIVING YOUR RIGHT TO SEEK RELIEF IN A COURT OF LAW AND TO HAVE A JURY TRIAL ON YOUR CLAIMS.
ANY DISPUTE OR CLAIM RELATING IN ANY WAY TO YOUR USE OF THE SERVICES WILL BE GOVERNED AND INTERPRETED BY AND UNDER THE LAWS OF THE STATE OF NEW YORK, CONSISTENT WITH THE FEDERAL ARBITRATION ACT, WITHOUT GIVING EFFECT TO ANY PRINCIPLES THAT PROVIDE FOR THE APPLICATION OF THE LAW OF ANY OTHER JURISDICTION. THE UNITED NATIONS CONVENTION ON CONTRACTS FOR THE INTERNATIONAL SALE OF GOODS IS EXPRESSLY EXCLUDED FROM THE TERMS.
PLEASE NOTE THAT The Terms are subject to change by EyeTemp in its sole discretion at any time. When changes are made, EyeTemp will make a new copy of the Terms available at the Website and within the Application. We will also update the “Last Updated” date at the top of the Terms. If we make any material changes, and you have registered with us to create an Account (as defined in Section 3.1 below) we will also send an e-mail to you at the last e-mail address you provided to us pursuant to the Terms. Any changes to the Terms will be effective immediately for new Users of the Website, the Application and/ or Services and will be effective thirty (30) days after posting notice of such changes on the Website for existing Users, provided that any material changes shall be effective for Users who have an Account with us upon the earlier of thirty (30) days after posting notice of such changes on the Website or thirty (30) days after dispatch of an e-mail notice of such changes to Registered Users (defined in Section 3.1 below). EyeTemp may require you to provide consent to the updated Terms in a specified manner before further use of the Website, the Application and/ or the Services is permitted. If you do not agree to any change(s) after receiving a notice of such change(s), you must stop using the Website, the Application and the Services. Otherwise, your continued use of the Website, the Application and/or Services constitutes your acceptance of such change(s). PLEASE REGULARLY CHECK THE WEBSITE TO VIEW THE THEN-CURRENT TERMS.
- Our Services. Through the Services, EyeTemp provides a method for EyeTemp Owners to monitor the temperature of items and provides notifications to the EyeTemp Owner’s mobile device through the Application. (“Monitoring Data”). A “EyeTemp Owner”is a user of the EyeTemp Properties (as defined below) that purchases and installs the Products and uses the Services. The Services also enable EyeTemp Owners to invite family members, friends, neighbors and other third parties to act as monitors for some or all of the EyeTemp Owner’s Products (each a “Monitor,”collectively “Monitors”) and to share Monitoring Data for those Products with such Monitors. For purposes of these Terms, a “User” refers to a EyeTemp Owner or Monitor, as applicable.
- Use of the Services and the EyeTemp Properties. These Terms govern your use of the EyeTemp Properties (as defined below). The Application, the Software, the Website, the Services, and the information and content available on the Website and in the Application and the Services (as these terms are defined herein) (collectively, the “the EyeTemp Properties”) are protected by copyright laws throughout the world. Subject to the Terms, EyeTemp grants you a limited license to reproduce portions of the EyeTemp Properties for the sole purpose of using the Services for your personal or internal business purposes. Unless otherwise specified by EyeTemp in a separate license, your right to use any of the EyeTemp Properties is subject to the Terms.
2.1 Application License. Subject to your compliance with the Terms, EyeTemp grants you a limited non-exclusive, non-transferable, non-sublicensable, revocable license to download, install and use the Application on mobile devices that you own or control and to run such copy of the Application solely for your own personal or internal business purposes. Furthermore, with respect to any Application accessed through or downloaded from the Apple App Store or Google Play Store you will only use the products as permitted by the “Usage Rules” set forth in the Apple App Store or Google Play Terms of Service.
2.2 EyeTemp Software. Use of any software and associated documentation, other than the Application, that is made available via the Website or the Services (“Software”) is governed by the Terms. Subject to your compliance with the Terms, EyeTemp grants you a non-assignable, non-transferable, non-sublicensable, revocable non-exclusive license to use the Software for the sole purpose of enabling you to use the Services in the manner permitted by the Terms. Some of the software that is included in or makes up our Software may be offered under an open source license that we will make available to you. There may be provisions in the open source license that expressly override some of the Terms, and you agree to be bound by the terms of such open source licenses.
2.3 Updates. You understand that the EyeTemp Properties are evolving. As a result, EyeTemp may require you to accept updates to the EyeTemp Properties that you have installed on your computer or mobile device. You acknowledge and agree that EyeTemp may update the EyeTemp Properties with or without notifying you. You may need to update third-party software from time to time in order to receive the Services or use the EyeTemp Properties.
2.4 Certain Restrictions. The rights granted to you in the Terms are subject to the following restrictions: (a) you shall not license, sell, rent, lease, transfer, assign, reproduce, distribute, host or otherwise commercially exploit the EyeTemp Properties or any portion of the EyeTemp Properties, including the Website, (b) you shall not frame or utilize framing techniques to enclose any trademark, logo, or other the EyeTemp Properties (including images, text, page layout or form) of EyeTemp; (c) you shall not use any metatags or other “hidden text” using EyeTemp’s name or trademarks; (d) you shall not modify, translate, adapt, merge, make derivative works of, disassemble, decompile, reverse compile or reverse engineer any part of the EyeTemp Properties except to the extent the foregoing restrictions are expressly prohibited by applicable law; (e) you shall not use any manual or automated software, devices or other processes (including but not limited to spiders, robots, scrapers, crawlers, avatars, data mining tools or the like) to “scrape” or download data from any web pages contained in the Website (except that we grant the operators of public search engines revocable permission to use spiders to copy materials from the Website for the sole purpose of and solely to the extent necessary for creating publicly available searchable indices of the materials, but not caches or archives of such materials); (f) you shall not access the EyeTemp Properties in order to build a similar or competitive website, application or service; (g) except as expressly stated herein, no part of the EyeTemp Properties may be copied, reproduced, distributed, republished, downloaded, displayed, posted or transmitted in any form or by any means; and (h) you shall not remove or destroy any copyright notices or other proprietary markings contained on or in the EyeTemp Properties. Any future release, update or other addition to the EyeTemp Properties shall be subject to the Terms. EyeTemp, its suppliers and service providers reserve all rights not granted in the Terms. Any unauthorized use of the EyeTemp Properties terminates the licenses granted by EyeTemp pursuant to the Terms.
2.5 Intended Use of the Services. While we aim for the Services to be highly reliable and available, they are not intended to be reliable or available 100% of the time. The Services are subject to sporadic interruptions and failures for a variety of reasons, including, but not limited to, reasons beyond EyeTemp’s control, such as Wi-Fi intermittency, service provider uptime, mobile notifications and carriers, among others. You acknowledge these limitations and agree that EyeTemp is not responsible for any damages allegedly caused by the failure or delay of the Services to reflect the current status or notifications.
2.6 Notifications. You acknowledge that the Services, including mobile notifications, are not intended to be 100% reliable and 100% available. We cannot and do not guarantee that you will receive notifications at any given time or at all. You agree that you will not rely on the Services for any life safety or critical purposes. Mobile notifications regarding the status and alarms on your Products are provided for informational purposes only and are not a substitute for a third-party monitored emergency notification system. Any information provided by EyeTemp on what to do in an emergency is based on authoritative safety sources, but there is no way for EyeTemp to provide specific information relating to a situation in your home or elsewhere. You acknowledge that it is your responsibility to educate yourself on how to respond to an emergency and to respond according to the specifics of your situation.
3.1 Registering Your Account. In order to access certain features of the EyeTemp Properties you may be required to become a Registered User. For purposes of the Terms, a “Registered User” is a User who has registered an account on the Website or through the Application (“Account”).
3.2 Registration Data. In registering for the Services, you agree to (a) provide true, accurate, current and complete information about yourself as prompted by the Services’ registration form (the “Registration Data”); and (b) maintain and promptly update the Registration Data to keep it true, accurate, current and complete. You represent that you are (i) at least thirteen (13) years old; (ii) of legal age to form a binding contract; and (iii) not a person barred from using the EyeTemp Properties under the laws of the United States, your place of residence or any other applicable jurisdiction. You are responsible for all activities that occur under your Account. You agree that you will accept full responsibility for any unauthorized use of the EyeTemp Properties by your Monitors. You may not share your Account or password with anyone, and you agree to (1) notify EyeTemp immediately of any unauthorized use of your password or any other breach of security; and (2) exit from your Account at the end of each session. If you provide any information that is untrue, inaccurate, not current or incomplete, or EyeTemp has reasonable grounds to suspect that such information is untrue, inaccurate, not current or incomplete, EyeTemp has the right to suspend or terminate your Account and refuse any and all current or future use of the EyeTemp Properties (or any portion thereof). You agree not to create an Account using a false identity or information, or on behalf of someone other than yourself. You agree that you shall not have more than one Account at any given time. EyeTemp reserves the right to remove or reclaim any usernames at any time and for any reason, including but not limited to, claims by a third party that a username violates the third party’s rights. You agree not to create an Account or use the EyeTemp Properties if you have been previously removed by EyeTemp, or if you have been previously banned from any of the EyeTemp Properties.
- Lithium-Ion Batteries. EyeTemp products may use lithium-ion batteries. Lithium-Ion batteries (and other rechargeable batteries) are potentially dangerous. Lithium Ion batteries, especially when subjected to abusive conditions, may become hot, explode, and/or ignite and can cause serious injury to person or damage property. EyeTemp holds no responsibility for any injury or damage caused by the use of any Lithium-Ion batteries (or other rechargeable batteries). You, the purchaser and/or user of any Lithium-Ion Battery or product containing Lithium-Ion Batteries are responsible for the use of such products. Keeping your battery in a safe location can help reduce, but not necessarily eliminate, the risks associated with using a Lithium-Ion battery. Never expose your battery to water (especially salt water), allow the battery to get wet, nor store the battery in any location where it may come into contact with water. Do not expose to extreme direct heat and FOLLOW ALL THE PLACEMENT INSTRUCTIONS ON THE APPLICATION THAT DIRECT YOU WHERE TO PLACE THE PRODUCTS. If you have any questions regarding placement of Products please contact EyeTemp at [email protected] EyeTemp will not be held responsible for any User’s wrongful use of the Products.
- Responsibility for Content.
5.1 Content. “Content” is defined as any information, data, text, software, music, sound, photographs, graphics, video, messages, tags and/or other materials accessible through the EyeTemp Properties.
5.2 Types of Content. You acknowledge that you, and not EyeTemp, are entirely responsible for any Content that you may upload, or otherwise make available (“Make Available”) through the EyeTemp Properties (“Your Content”), and that you and other Users of the EyeTemp Properties, and not EyeTemp, are similarly responsible for all Content they Make Available through the EyeTemp Properties (“User Content”).
5.3 No Obligation to Pre-Screen Content. You acknowledge that EyeTemp has no obligation to pre-screen Content (including, but not limited to, User Content), although EyeTemp reserves the right in its sole discretion to pre-screen, refuse or remove any Content. By entering into the Terms, you hereby provide your irrevocable consent to such monitoring. You acknowledge and agree that you have no expectation of privacy concerning the transmission of Your Content, including without limitation chat, text, or voice communications. In the event that EyeTemp pre-screens, refuses or removes any Content, you acknowledge that EyeTemp will do so for EyeTemp’s benefit, not yours. Without limiting the foregoing, EyeTemp shall have the right to remove any Content that violates the Terms or is otherwise objectionable.
5.4 Storage. Unless expressly agreed to by EyeTemp in writing elsewhere, EyeTemp has no responsibility or liability for the deletion or accuracy of any Monitoring Data; the failure to store, transmit or receive transmission of Monitoring Data; or the security, privacy, storage, or transmission of other communications originating with or involving use of the EyeTemp Properties. Certain Services may enable you to specify the level at which such Services restrict access to Monitoring Data. To the extent applicable, you are solely responsible for applying the appropriate level of access to Monitoring Data. If you do not choose, the system may default to its most permissive setting. You agree that EyeTemp retains the right to create reasonable limits on EyeTemp’s use and storage of Monitoring Data, such as limits on file size, storage space, processing capacity, and similar limits described in the web pages accompanying the Services and as otherwise determined by EyeTemp in its sole discretion.
6.1 EyeTemp Properties. You agree that EyeTemp and its suppliers own all rights, title and interest in the Products and the EyeTemp Properties (including but not limited to, copyrights, patents, trademarks, trade secrets, methods of operation, moral rights, and documentation). You will not remove, alter or obscure any copyright, trademark, service mark or other proprietary rights notices incorporated in or accompanying the Products or the EyeTemp Properties.
6.2 Trademarks. Trademarks and other related graphics, logos, service marks and trade names used on or in connection with the EyeTemp Properties or in connection with the Services are the trademarks of EyeTemp and may not be used without permission in connection with any third-party products or services. Other trademarks, service marks and trade names that may appear on or in the EyeTemp Properties are the property of their respective owners.
6.3 Other Content. Except with respect to Your Content, you agree that you have no right or title in or to any Content that appears on or in the EyeTemp Properties.
6.4 Your Content. EyeTemp does not claim ownership of Your Content. However, when you as a User upload Your Content on or in the EyeTemp Properties, you represent that you own and/or have a royalty-free, perpetual, irrevocable, worldwide, non-exclusive right (including any moral rights) and license to use, license, reproduce, modify, adapt, publish, translate, create derivative works from, distribute, derive revenue or other remuneration from, and communicate to the public, perform and display Your Content (in whole or in part) worldwide and/or to incorporate it in other works in any form, media or technology now known or later developed, for the full term of any worldwide intellectual property right that may exist in Your Content.
6.5 License to Your Content. Subject to any applicable account settings that you select, you grant EyeTemp a fully paid, royalty-free, perpetual, irrevocable, worldwide, royalty-free, non-exclusive and fully sublicensable right (including any moral rights) and license to use, license, distribute, reproduce, modify, adapt, publicly perform, and publicly display, Your Content (in whole or in part) for the purposes of operating and providing the EyeTemp Properties to you and to our other Users. Please remember that other Users may search for, see, use, modify and reproduce any of Your Content that you submit to any “public” area of the EyeTemp Properties. You warrant that the holder of any worldwide intellectual property right, including moral rights, in Your Content, has completely and effectively waived all such rights and validly and irrevocably granted to you the right to grant the license stated above. You agree that you, not EyeTemp, are responsible for all of Your Content that you Make Available on or in the EyeTemp Properties.
6.6 Your Account. Notwithstanding anything to the contrary herein, you acknowledge and agree that you shall have no ownership or other property interest in your Account, and you further acknowledge and agree that all rights in and to your Account are and shall forever be owned by and inure to the benefit of EyeTemp.
6.7 Feedback. You agree that submission of any ideas, suggestions, documents, and/or proposals to EyeTemp through its suggestion, feedback, wiki, forum or similar pages (“Feedback”) is at your own risk and that EyeTemp has no obligations (including without limitation obligations of confidentiality) with respect to such Feedback. You represent and warrant that you have all rights necessary to submit the Feedback. You hereby grant to EyeTemp a fully paid, royalty-free, perpetual, irrevocable, worldwide, non-exclusive, and fully sublicensable right and license to use, reproduce, perform, display, distribute, adapt, modify, re-format, create derivative works of, and otherwise commercially or non-commercially exploit in any manner, any and all Feedback, and to sublicense the foregoing rights, in connection with the operation and maintenance of the EyeTemp Properties.
- User Conduct. As a condition of use, you agree not to use the EyeTemp Properties for any purpose that is prohibited by the Terms or by applicable law. You shall not (and shall not permit any third-party) either (a) to take any action or (b) Make Available any Content on or through the EyeTemp Properties that: (i) infringes any patent, trademark, trade secret, copyright, right of publicity or other right of any person or entity; (ii) is unlawful, threatening, abusive, harassing, defamatory, libelous, deceptive, fraudulent, invasive of another’s privacy, tortious, obscene, offensive, or profane; (iii) constitutes unauthorized or unsolicited advertising, junk or bulk e-mail; (iv) involves commercial activities and/or sales without EyeTemp’s prior written consent, such as contests, sweepstakes, barter, advertising, or pyramid schemes; (v) impersonates any person or entity, including any employee or representative of EyeTemp; (vi) interferes with or attempts to interfere with the proper functioning of the EyeTemp Properties or uses the EyeTemp Properties in any way not expressly permitted by the Terms; or (vii) to attempt or engage in any potentially harmful acts that are directed against the EyeTemp Properties, including but not limited to violating or attempting to violate any security features of the EyeTemp Properties, using manual or automated software or other means to access, “scrape,” “crawl” or “spider” any pages contained in the EyeTemp Properties, introducing viruses, worms, or similar harmful code into the EyeTemp Properties, or interfering or attempting to interfere with use of the EyeTemp Properties by any other User, host or network, including by means of overloading, “flooding,” “spamming,” “mail bombing”, or “crashing” the EyeTemp Properties.
- Investigations. EyeTemp may, but is not obligated to, monitor or review the EyeTemp Properties and Content at any time. Without limiting the foregoing, EyeTemp shall have the right, in its sole discretion, to remove any of Your Content for any reason (or no reason), including if such Content violates the Terms or any applicable law. Although EyeTemp does not generally monitor User activity occurring in connection with the EyeTemp Properties or Content, if EyeTemp becomes aware of any possible violations by you of any provision of the Terms, EyeTemp reserves the right to investigate such violations, and EyeTemp may, at its sole discretion, immediately terminate your license to use the EyeTemp Properties, or change, alter or remove Your Content, in whole or in part, without prior notice to you.
- Third-Party Services.
9.1 Third-Party Websites, Applications & Ads. The EyeTemp Properties may contain links to third-party websites and applications (“Third-Party Websites & Applications”) and advertisements for third parties (collectively, “Third-Party Websites, Applications & Ads”). When you click on a link to a third-party website, application or ad, we will not warn you that you have left the EyeTemp Properties and are subject to the terms and conditions (including privacy policies) of another website or destination. Such Third-Party Websites, Applications & Ads are not under the control of EyeTemp. EyeTemp is not responsible for any Third-Party Websites, Applications & Ads. EyeTemp provides these Third-Party Websites, Applications & Ads only as a convenience and does not review, approve, monitor, endorse, warrant, or make any representations with respect to Third-Party Websites, Applications & Ads, or their products or services. You use all links in Third-Party Websites, Applications & Ads at your own risk. When you leave our Website, our Terms and policies no longer govern. You should review applicable terms and policies, including privacy and data gathering practices, of any Third-Party Websites & Applications, and should make whatever investigation you feel necessary or appropriate before proceeding with any transaction with any third party.
- Fees and Purchase Terms.
10.1 Payments Made Through EyeTemp Website. The EyeTemp Website may provide you the ability to order or purchase the Products. Should you order or purchase the Products through the Website, EyeTemp will collect and process your payment information through the Website. You will be required to pay all applicable fees and comply with all applicable purchase rules and requirements set out on our Website. EyeTemp uses Stripe as its third party online shopping service provider for payment services (e.g., card acceptance, merchant settlement, and related services). By using the EyeTemp Services to purchase the Products, you agree to be bound by Stripe’s Terms of Service. You hereby consent and authorize EyeTemp and Stripe to share any information and payment instructions you provide to the extent required to complete your transactions in accordance with the Terms, including personal, financial, credit card payment, and transaction information. Please refer to your Products documentation for returns or warranty information, or contact us at the contact information provided in these Terms or on our Website.
10.2 General Purpose of Terms: Sale of Service, not Software. The purpose of the Terms is for you to secure access to the Services. All fees set forth within and paid by you under the Terms shall be considered solely in furtherance of this purpose. In no way are these fees paid considered payment for the sale, license, or use of EyeTemp’s Software, and, furthermore, any use of EyeTemp’s Software by you in furtherance of the Terms will be considered merely in support of the purpose of the Terms.
10.3 Payment. Certain aspects of the Services may be provided for a fee. You shall pay all applicable fees as described on any applicable price list on our Website. EyeTemp reserves the right to change its price lists and to institute new charges at any time, upon notice to you, which may be sent by e-mail or posted on the Website. Your use of the Services following such notification constitutes your acceptance of any new or increased charges.
10.4 Taxes. EyeTemp’s fees are net of any applicable Sales Tax. If any Services, or payments for any Services, under the Terms are subject to Sales Tax in any jurisdiction and you have not remitted the applicable Sales Tax to EyeTemp, you will be responsible for the payment of such Sales Tax and any related penalties or interest to the relevant tax authority, and you will indemnify EyeTemp for any liability or expense we may incur in connection with such Sales Taxes. Upon our request, you will provide us with official receipts issued by the appropriate taxing authority, or other such evidence that you have paid all applicable taxes. For purposes of this section, “Sales Tax” shall mean any sales or use tax, and any other tax measured by sales proceeds, that EyeTemp is permitted to pass to its customers, that is the functional equivalent of a sales tax where the applicable taxing jurisdiction does not otherwise impose a sales or use tax.
10.5 Withholding Taxes. You agree to make all payments of fees to EyeTemp free and clear of, and without reduction for, any withholding taxes. Any such taxes imposed on payments of fees to EyeTemp will be your sole responsibility, and you will provide EyeTemp with official receipts issued by the appropriate taxing authority, or such other evidence as we may reasonably request, to establish that such taxes have been paid. When you order products for overseas delivery, you may be subject to import duties and taxes, which are levied when the package with the products arrives at the destination that you specified. Any charges for customs clearance have to be borne by you, as EyeTemp has no control over such charges and cannot foresee the amount charged (if any). Since customs policies vary from country to country, you should contact the customs office in the country where you have us ship your products to get more information. Please also be aware that you are considered the importer of record and must comply with all laws and regulations of such country.
- Use of the EyeTemp Application.
11.1 App Stores. You acknowledge and agree that the availability of the Application and the Platform Services is dependent on the third party from which you received the Application license, e.g., the Apple App Store or Google Play Store (“App Store”). You acknowledge that the Terms are between you and EyeTemp and not with the App Store. EyeTemp, not the App Store, is solely responsible for the EyeTemp Services, including the Application, the content thereof, maintenance, support services, and warranty therefor, and addressing any claims relating thereto (e.g., products liability, legal compliance or intellectual property infringement). In order to use the Application, you must have access to a wireless network, and you agree to pay all fees associated with such access. You also agree to pay all fees (if any) charged by the App Store in connection with the EyeTemp Services, including the Application. You agree to comply with, and your license to use the Application is conditioned upon your compliance with, all applicable third-party terms of agreement (e.g., the App Store’s terms and policies) when using the EyeTemp Services, including the Application. You acknowledge that the App Store (and its subsidiaries) are third-party beneficiaries of the Terms and will have the right to enforce them.
11.2 Accessing and Downloading the Application from iTunes. The following applies to any App Store Sourced Application accessed through or downloaded from the Apple App Store:
(a) You acknowledge and agree that (i) the Terms are concluded between you and EyeTemp only, and not Apple, and (ii) EyeTemp, not Apple, is solely responsible for the App Store Sourced Application and content thereof. Your use of the App Store Sourced Application must comply with the App Store Terms of Service.
(b) You acknowledge that Apple has no obligation whatsoever to furnish any maintenance and support services with respect to the App Store Sourced Application.
(c) In the event of any failure of the App Store Sourced Application to conform to any applicable warranty, you may notify Apple, and Apple will refund the purchase price for the App Store Sourced Application to you and to the maximum extent permitted by applicable law, Apple will have no other warranty obligation whatsoever with respect to the App Store Sourced Application. As between EyeTemp and Apple, any other claims, losses, liabilities, damages, costs or expenses attributable to any failure to conform to any warranty will be the sole responsibility of EyeTemp.
(d) You and EyeTemp acknowledge that, as between EyeTemp and Apple, Apple is not responsible for addressing any claims you have or any claims of any third party relating to the App Store Sourced Application or your possession and use of the App Store Sourced Application, including, but not limited to: (i) product liability claims; (ii) any claim that the App Store Sourced Application fails to conform to any applicable legal or regulatory requirement; and (iii) claims arising under consumer protection or similar legislation.
(e) You and EyeTemp acknowledge that, in the event of any third-party claim that the App Store Sourced Application or your possession and use of that App Store Sourced Application infringes that third party’s intellectual property rights, as between EyeTemp and Apple, EyeTemp, not Apple, will be solely responsible for the investigation, defense, settlement and discharge of any such intellectual property infringement claim to the extent required by the Terms.
(f) You and EyeTemp acknowledge and agree that Apple, and Apple’s subsidiaries, are third-party beneficiaries of the Terms as related to your license of the App Store Sourced Application, and that, upon your acceptance of the terms and conditions of the Terms, Apple will have the right (and will be deemed to have accepted the right) to enforce the Terms as related to your license of the App Store Sourced Application against you as a third-party beneficiary thereof.
(g) Without limiting any other terms of the Terms, you must comply with all applicable third-party terms of agreement when using the App Store Sourced Application.
- Indemnification. You agree to indemnify and hold EyeTemp, its parents, subsidiaries, affiliates, officers, employees, agents, partners and licensors (collectively, the “EyeTemp Parties”) harmless from any losses, costs, liabilities and expenses (including reasonable attorneys’ fees) relating to or arising out of: (a) Your Content; (b) your use of, or inability to use, the EyeTemp Properties; (c) your violation of the Terms; (d) your violation of any rights of another party, including any other Users of the EyeTemp Properties; or (e) your violation of any applicable laws, rules or regulations. This provision does not require you to indemnify any of the EyeTemp Parties for any unconscionable commercial practice by such party or for such party’s fraud, deception, false promise, misrepresentation or concealment, suppression or omission of any material fact in connection with the Website or any Services provided hereunder. EyeTemp reserves the right, at its own cost, to assume the exclusive defense and control of any matter otherwise subject to indemnification by you, in which event you will fully cooperate with EyeTemp in asserting any available defenses. You agree that the provisions in this section will survive any termination of your Account, the Terms or your access to the EyeTemp Properties.
- Disclaimer of Warranties.
13.1 Not an Emergency Response System. THE EYETEMP PROPERTIES ARE NOT AN EMERGENCY RESPONSE SYSTEM AND WILL NOT AUTOMATICALLY CONTACT EMERGENCY SERVICES OR DISPATCH EMERGENCY SERVICES TO YOUR HOME OR PROPERTY IN THE EVENT OF AN ALARM. IT IS THE RESPONSIBILITY OF EYETEMP OWNERS TO TAKE ACTION TO RESPOND TO AN ALARM NOTIFICATION AND TO CONTACT EMERGENCY SERVICES OR CONFIRM THAT EMERGENCY SERVICES WERE CONTACTED. WHILE THE SERVICES MAY PROVIDE THE ABILITY TO CONTACT EMERGENCY SERVICES THROUGH THE APPLICATION, EYETEMP WILL NOT CONTACT EMERGENCY SERVICES ON BEHALF OF EYETEMP OWNERS OR MONITORS. EYETEMP IS NOT RESPONSIBLE FOR AND WILL NOT BE LIABLE FOR ANY FAILURE TO SEND AN ALARM NOTIFICATION OR ANY DELAY IN RESPONDING TO OR FAILURE TO RESPOND TO AN ALARM. IN ADDITION, EYETEMP CUSTOMER CARE AND SUPPORT CONTACTS CANNOT BE CONSIDERED A LIFESAVING SOLUTION FOR ANYONE AT RISK IN THE HOME OR PROPERTY, AND THEY ARE NOT A SUBSTITUTE FOR EMERGENCY SERVICES. YOU ACKNOWLEDGE, UNDERSTAND AND AGREE THAT YOUR USE OF THE EYETEMP PROPERTIES IS ENTIRELY AT YOUR OWN RISK.
13.2 As Is. YOU EXPRESSLY UNDERSTAND AND AGREE THAT TO THE EXTENT PERMITTED BY APPLICABLE LAW, YOUR USE OF THE EYETEMP PROPERTIES IS AT YOUR SOLE RISK, AND THE EYETEMP PROPERTIES ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS, WITH ALL FAULTS. EYETEMP PARTIES EXPRESSLY DISCLAIM ALL WARRANTIES, REPRESENTATIONS, AND CONDITIONS OF ANY KIND, WHETHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OR CONDITIONS OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT. This Section 13 does not affect in any way our return policy. If for any reason you are not satisfied with a purchase you make on the Website, please return it in accordance with the terms of our return policy.
(a) THE EYETEMP PARTIES MAKE NO WARRANTY, REPRESENTATION OR CONDITION THAT: (1) THE EYETEMP PROPERTIES WILL MEET YOUR REQUIREMENTS; (2) YOUR USE OF THE EYETEMP PROPERTIES WILL BE UNINTERRUPTED, TIMELY, SECURE OR ERROR-FREE; (3) THE RESULTS THAT MAY BE OBTAINED FROM USE OF THE EYETEMP PROPERTIES WILL BE ACCURATE OR RELIABLE; OR (4) ANY ERRORS IN THE EYETEMP PROPERTIES WILL BE CORRECTED.
(b) OTHER THAN WITH RESPECT TO THE PRODUCTS, EYETEMP DOES NOT WARRANT, ENDORSE, GUARANTEE, OR ASSUME RESPONSIBILITY FOR ANY DEVICE OR OTHER GOODS USED IN CONNECTION WITH THE EYETEMP PROPERTIES (INCLUDING, BUT NOT LIMITED TO, THIRD PARTY SMOKE DETECTORS OR CARBON MONOXIDE DETECTORS).
(c) ANY CONTENT DOWNLOADED FROM OR OTHERWISE ACCESSED THROUGH THE EYETEMP PROPERTIES IS ACCESSED AT YOUR OWN RISK, AND YOU SHALL BE SOLELY RESPONSIBLE FOR ANY DAMAGE TO YOUR PROPERTY OR PERSON, INCLUDING, BUT NOT LIMITED TO, YOUR COMPUTER SYSTEM AND ANY DEVICE YOU USE TO ACCESS THE EYETEMP PROPERTIES, OR ANY OTHER LOSS THAT RESULTS FROM ACCESSING SUCH CONTENT.
(d) THE SERVICES MAY BE SUBJECT TO DELAYS, CANCELLATIONS AND OTHER DISRUPTIONS. EYETEMP MAKES NO WARRANTY, REPRESENTATION OR CONDITION WITH RESPECT TO SERVICES, INCLUDING BUT NOT LIMITED TO, THE QUALITY, EFFECTIVENESS, REPUTATION AND OTHER CHARACTERISTICS OF SERVICES.
(e) NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED FROM EYETEMP OR THROUGH THE EYETEMP PROPERTIES WILL CREATE ANY WARRANTY NOT EXPRESSLY MADE HEREIN.
(f) From time to time, EyeTemp may offer new “beta” features or tools with which its users may experiment. Such features or tools are offered solely for experimental purposes and without any warranty of any kind, and may be modified or discontinued at THE EyeTemp’s sole discretion. The provisions of this section apply with full force to such features or tools.
13.3 No Liability for Conduct of Third Parties. YOU ACKNOWLEDGE AND AGREE THAT THE EYETEMP PARTIES ARE NOT LIABLE, AND YOU AGREE NOT TO SEEK TO HOLD THE EYETEMP PARTIES LIABLE, FOR THE CONDUCT OF THIRD PARTIES, INCLUDING OPERATORS OF EXTERNAL SITES, AND THAT THE RISK OF INJURY FROM SUCH THIRD PARTIES RESTS ENTIRELY WITH YOU.
13.4 No Liability for Conduct of Other Users. YOU ARE SOLELY RESPONSIBLE FOR ALL OF YOUR COMMUNICATIONS AND INTERACTIONS WITH OTHER USERS OF THE EYETEMP PROPERTIES. YOU UNDERSTAND THAT EYETEMP DOES NOT MAKE ANY ATTEMPT TO VERIFY THE STATEMENTS OR ACTIONS OF USERS OF THE EYETEMP PROPERTIES. EYETEMP MAKES NO REPRESENTATIONS OR WARRANTIES AS TO THE CONDUCT OF USERS OF THE EYETEMP PROPERTIES OR THEIR COMPATIBILITY WITH ANY CURRENT OR FUTURE USERS OF THE EYETEMP PROPERTIES. YOU AGREE TO TAKE REASONABLE PRECAUTIONS IN ALL COMMUNICATIONS AND INTERACTIONS WITH OTHER USERS OF THE EYETEMP PROPERTIES, WHETHER EYETEMP OWNERS, MONITORS OR BOTH. EYETEMP IS NOT RESPONSIBLE FOR A MONITOR’S ACTIONS IN RESPONSE TO OR FAILURE TO RESPOND TO A NOTIFICATION TRANSMITTED THROUGH THE SERVICES.
13.5 Product Warnings. EYETEMP MAY INCLUDE PRODUCT WARNINGS AND INSTRUCTIONS ON THE PACKAGING, LABELS AND DOCUMENTATION OF OUR PRODUCTS. AS A CONDITION TO RECEIVING SERVICES, YOU AGREE TO STRICTLY COMPLY WITH ALL PRODUCT WARNINGS AND INSTRUCTIONS ON THE PACKAGING, LABELS AND DOCUMENTATION OF THE PRODUCT AND ANY UPDATES THAT EYETEMP PROVIDES TO YOU THROUGH THE EYETEMP PROPERTIES.
- Limitation of Liability.
14.1 Disclaimer of Certain Damages. YOU UNDERSTAND AND AGREE THAT IN NO EVENT SHALL EYETEMP PARTIES BE LIABLE FOR ANY INDIRECT, INCIDENTAL, SPECIAL, OR CONSEQUENTIAL DAMAGES OR FOR ANY DAMAGES RESULTING FROM LOSS OF USE, DATA, OR PROFITS, ARISING OUT OF OR IN CONNECTION WITH THE EYETEMP PROPERTIES, WHETHER OR NOT EYETEMP HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, ARISING OUT OF OR IN CONNECTION WITH THE TERMS, OR FROM ANY COMMUNICATIONS OR INTERACTIONS WITH OTHER USERS OF THE EYETEMP PROPERTIES, ON ANY THEORY OF LIABILITY, RESULTING FROM: (1) THE USE OR INABILITY TO USE THE EYETEMP PROPERTIES; (2) THE COST OF PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES RESULTING FROM ANY GOODS, DATA, INFORMATION OR SERVICES PURCHASED OR OBTAINED OR MESSAGES RECEIVED FOR TRANSACTIONS ENTERED INTO THROUGH THE EYETEMP PROPERTIES; (3) UNAUTHORIZED ACCESS TO OR ALTERATION OF YOUR TRANSMISSIONS OR DATA; (4) STATEMENTS OR CONDUCT OF ANY THIRD PARTY ON THE EYETEMP PROPERTIES; OR (5) ANY OTHER MATTER RELATED TO THE EYETEMP PROPERTIES, WHETHER BASED ON WARRANTY, COPYRIGHT, CONTRACT, TORT (INCLUDING NEGLIGENCE), PRODUCT LIABILITY OR ANY OTHER LEGAL THEORY. THE FOREGOING DISCLAIMERS SHALL NOT APPLY TO LIABILITY OF A EYETEMP PARTY FOR (A) DEATH OR PERSONAL INJURY CAUSED BY A EYETEMP PARTY’S NEGLIGENCE; OR FOR (B) ANY INJURY CAUSED BY A EYETEMP PARTY’S FRAUD OR FRAUDULENT MISREPRESENTATION.
14.2 Cap on Liability. UNDER NO CIRCUMSTANCES WILL THE EYETEMP PARTIES BE LIABLE TO YOU FOR MORE THAN THE GREATER OF (A) THE AMOUNT RECEIVED BY EYETEMP AS A RESULT OF YOUR USE OF THE EYETEMP PROPERTIES DURING THE TWELVE (12) MONTHS IMMEDIATELY PRECEEDING THE EVENT THAT GAVE RISE TO SUCH CLAIM, AND (B) FIFTY DOLLARS ($50). THE FOREGOING CAP ON LIABILITY SHALL NOT APPLY TO LIABILITY OF A EYETEMP PARTY FOR (A) DEATH OR PERSONAL INJURY CAUSED BY A EYETEMP PARTY’S NEGLIGENCE; OR FOR (B) ANY INJURY CAUSED BY A EYETEMP PARTY’S FRAUD OR FRAUDULENT MISREPRESENTATION.
14.4 Basis of the Bargain. THE LIMITATIONS OF DAMAGES SET FORTH ABOVE ARE FUNDAMENTAL ELEMENTS OF THE BASIS OF THE BARGAIN BETWEEN EYETEMP AND YOU.
- Term and Termination.
15.1 Term. The Terms commence on the date when you accept them (as described in the preamble above) and remain in full force and effect while you use the EyeTemp Properties, unless terminated earlier in accordance with the Terms.
15.2 Prior Use. Notwithstanding the foregoing, if you used the EyeTemp Properties prior to the date you accepted the Terms, you hereby acknowledge and agree that the Terms commenced on the date you first used the EyeTemp Properties (whichever is earlier) and will remain in full force and effect while you use the EyeTemp Properties, unless earlier terminated in accordance with the Terms.
15.3 Termination of Services by EyeTemp. If payment is required for Services and timely payment cannot be charged to you for any reason, if you have materially breached any provision of the Terms, or if EyeTemp is required to do so by law (e.g., where the provision of the Website, the Application, the Software or the Services is, or becomes, unlawful), EyeTemp has the right to, immediately and without notice, suspend or terminate any Services provided to you. You agree that all terminations for cause shall be made in EyeTemp’s sole discretion and that EyeTemp shall not be liable to you or any third party for any termination of your Account or any Services.
15.4 Termination of Services by You. If you want to terminate the Services provided by EyeTemp, you may do so by (a) notifying EyeTemp at any time and (b) closing your Account for all of the Services that you use. Your notice should be sent, in writing, to EyeTemp’s address set forth below.
15.5 Effect of Termination. Termination of any Service includes removal of access to such Service and barring of further use of the Service. Termination of all Services also includes deletion of your password and all related information, files and Content associated with or inside your Account (or any part thereof), including Your Content. Upon termination of any Service, your right to use such Service will automatically terminate immediately. You understand that any termination of Services may involve deletion of Your Content associated therewith from our live databases. EyeTemp will not have any liability whatsoever to you for any suspension or termination, including for deletion of Your Content. All provisions of the Terms which by their nature should survive, shall survive termination of Services, including without limitation, ownership provisions, warranty disclaimers, and limitation of liability.
15.6 Violations. If EyeTemp becomes aware of any possible violations by you of the Terms, EyeTemp reserves the right to investigate such violations. In the event that EyeTemp determines, in its sole discretion, that you have breached any portion of the Terms, or have otherwise demonstrated conduct inappropriate for the EyeTemp Properties, EyeTemp reserves the right to (i) warn you via e-mail (to any e-mail address you have provided to EyeTemp) that you have violated the Terms; (ii) delete any of Your Content provided by you or your agent(s) to the EyeTemp Properties; (iii) discontinue your registration(s) with any of the EyeTemp Properties, including the Services; (iv) notify and/or send Content to and/or fully cooperate with the proper law enforcement authorities for further action; and/or (v) pursue any other action which EyeTemp deems to be appropriate. If, as a result of the investigation, EyeTemp believes that criminal activity has occurred, EyeTemp reserves the right to refer the matter to, and to cooperate with, any and all applicable legal authorities. EyeTemp is entitled, except to the extent prohibited by applicable law, to disclose any information or materials on or in the EyeTemp Properties, including Your Content, in EyeTemp’s possession in connection with your use of the EyeTemp Properties, to (i) comply with applicable laws, legal process or governmental request; (ii) enforce the Terms, (iii) respond to any claims that Your Content violates the rights of third parties, (iv) respond to your requests for customer service, or (v) protect the rights, property or personal safety of EyeTemp, its Users or the public, and all enforcement or other government officials, as EyeTemp in its sole discretion believes to be necessary or appropriate.
15.7 No Subsequent Registration. If your Account or access to the EyeTemp Properties or EyeTemp Services is terminated by EyeTemp due to your violation of any portion of the Terms or for conduct otherwise inappropriate for the community, then you agree that you shall not attempt to re-register with or access the EyeTemp Properties through use of a different member name or otherwise. In the event that you violate the immediately preceding sentence, EyeTemp reserves the right, in its sole discretion, to immediately take any or all of the actions set forth herein without any notice or warning to you.
- International Users. The EyeTemp Properties can be accessed from countries around the world and may contain references to Services and Content that are not available in your country. These references do not imply that EyeTemp intends to announce such Services or Content in your country. The EyeTemp Properties are controlled and offered by EyeTemp from its facilities in the United States of America. EyeTemp makes no representations that the EyeTemp Properties are appropriate or available for use in other locations. Those who access or use the EyeTemp Properties from other jurisdictions do so at their own volition and are responsible for compliance with local law.
- Dispute Resolution.Please read the following arbitration agreement in this Section (“Arbitration Agreement”) carefully. It requires you to arbitrate disputes with EyeTemp and limits the manner in which you can seek relief from us.
(a) Applicability of Arbitration Agreement. You agree that any dispute or claim relating in any way to your access or use of the Website, to any Products sold or distributed through the Website, or to any aspect of your relationship with EyeTemp, will be resolved by binding arbitration, rather than in court, except that (1) you may assert claims in small claims court if your claims qualify, and (2) you or EyeTemp may seek equitable relief in court for infringement or other misuse of intellectual property rights (such as trademarks, trade dress, domain names, trade secrets, copyrights, and patents). This Arbitration Agreement shall apply, without limitation, to all claims that arose or were asserted before the effective date of these Terms or any prior version of this Terms. (b) Arbitration Rules and Forum. The Federal Arbitration Act governs the interpretation and enforcement of this Arbitration Agreement. To begin an arbitration proceeding, you must send a letter requesting arbitration and describing your claim to our registered agent:
Corporation Service Company
251 Little Falls Drive
Wilmington, DE 19808
The arbitration will be conducted by JAMS, an established alternative dispute resolution provider. Disputes involving claims and counterclaims under $250,000, not inclusive of attorneys’ fees and interest, shall be subject to JAMS’s most current version of the Streamlined Arbitration Rules and procedures available at http://www.jamsadr.com/rules-streamlined-arbitration/; all other claims shall be subject to JAMS’s most current version of the Comprehensive Arbitration Rules and Procedures, available at http://www.jamsadr.com/rules-comprehensive-arbitration/. JAMS’s rules are also available at www.jamsadr.com or by calling JAMS at 800-352-5267. If JAMS is not available to arbitrate, the parties will select an alternative arbitral forum. If the arbitrator finds that you cannot afford to pay JAMS’s filing, administrative, hearing and/or other fees and cannot obtain a waiver from JAMS, EyeTemp will pay them for you. In addition, EyeTemp will reimburse all such JAMS’s filing, administrative, hearing and/or other fees for claims totaling less than $10,000 unless the arbitrator determines the claims are frivolous.
You may choose to have the arbitration conducted by telephone, based on written submissions, or in person in the country where you live or at another mutually agreed location. Any judgment on the award rendered by the arbitrator may be entered in any court of competent jurisdiction.
(c) Authority of Arbitrator. The arbitrator shall have exclusive authority to (a) determine the scope and enforceability of this Arbitration Agreement and (b) resolve any dispute related to the interpretation, applicability, enforceability or formation of this Arbitration Agreement including, but not limited to any claim that all or any part of this Arbitration Agreement is void or voidable. The arbitration will decide the rights and liabilities, if any, of you and EyeTemp. The arbitration proceeding will not be consolidated with any other matters or joined with any other cases or parties. The arbitrator shall have the authority to grant motions dispositive of all or part of any claim. The arbitrator shall have the authority to award monetary damages and to grant any non-monetary remedy or relief available to an individual under applicable law, the arbitral forum’s rules, and the Agreement (including the Arbitration Agreement). The arbitrator shall issue a written award and statement of decision describing the essential findings and conclusions on which the award is based, including the calculation of any damages awarded. The arbitrator has the same authority to award relief on an individual basis that a judge in a court of law would have. The award of the arbitrator is final and binding upon you and us.
(d) Waiver of Jury Trial. YOU AND EYETEMP HEREBY WAIVE ANY CONSTITUTIONAL AND STATUTORY RIGHTS TO SUE IN COURT AND HAVE A TRIAL IN FRONT OF A JUDGE OR A JURY. You and EyeTemp are instead electing that all claims and disputes shall be resolved by arbitration under this Arbitration Agreement, except as specified in Section 18(a) above. An arbitrator can award on an individual basis the same damages and relief as a court and must follow this Agreement as a court would. However, there is no judge or jury in arbitration, and court review of an arbitration award is subject to very limited review.
(e) Waiver of Class or Other Non-Individualized Relief. ALL CLAIMS AND DISPUTES WITHIN THE SCOPE OF THIS ARBITRATION AGREEMENT MUST BE ARBITRATED ON AN INDIVIDUAL BASIS AND NOT ON A CLASS OR COLLECTIVE BASIS, ONLY INDIVIDUAL RELIEF IS AVAILABLE, AND CLAIMS OF MORE THAN ONE CUSTOMER OR USER CANNOT BE ARBITRATED OR CONSOLIDATED WITH THOSE OF ANY OTHER CUSTOMER OR USER. If a decision is issued stating that applicable law precludes enforcement of any of this subsection’s limitations as to a given claim for relief, than then claim must be severed from the arbitration and brought into the State or Federal Courts located in the State of New York. All other claims shall be arbitrated.
(f) 30-Day Right to Opt Out. You have the right to opt out of the provisions of this Arbitration Agreement by sending written notice of your decision to opt out to the following address: EyeTemp, Inc. PO Box 332, Saint James NY 11780, within 30 days after first becoming subject to this Arbitration Agreement (or contact [email protected]). Your notice must include your name and address, your EyeTemp username (if any), the email address you used to set up your EyeTemp account (if you have one), and an unequivocal statement that you want to opt out of this Arbitration Agreement. If you opt out of this Arbitration Agreement, all other parts of this Agreement will continue to apply to you. Opting out of this Arbitration Agreement has no effect on any other arbitration agreements that you may currently have, or may enter in the future, with us.
(g) Severability. Except as provided in Section 18((e), if any part or parts of this Arbitration Agreement are found under the law to be invalid or unenforceable, then such specific part or parts shall be of no force and effect and shall be severed and the remainder of the Arbitration Agreement shall continue in full force and effect.
(h) Survival of Agreement. This Arbitration Agreement will survive the termination of your relationship with EyeTemp.
(i) Modification. Notwithstanding any provision in the Terms to the contrary, we agree that if EyeTemp makes any future material change to this Arbitration Agreement, you may reject that change within thirty (30 days of such change becoming effective by writing EyeTemp at the following address: EyeTemp, Inc. PO Box 332, Saint James NY 11780.
- General Provisions.
18.1 Electronic Communications. The communications between you and EyeTemp use electronic means, whether you visit the EyeTemp Properties or send EyeTemp e-mails, or whether EyeTemp posts notices on the EyeTemp Properties or communicates with you via e-mail. For contractual purposes, you (1) consent to receive communications from EyeTemp in an electronic form; and (2) agree that all terms and conditions, agreements, notices, disclosures, and other communications that EyeTemp provides to you electronically satisfy any legal requirement that such communications would satisfy if it were to be in writing. The foregoing does not affect your statutory rights.
18.2 Release. You hereby release EyeTemp Parties and their successors from claims, demands, any and all losses, damages, rights, and actions of any kind, including personal injuries, death, and property damage, that is either directly or indirectly related to or arises from your use of the EyeTemp Properties, including but not limited to, any interactions with or conduct of other Users or third-party websites of any kind arising in connection with or as a result of the Terms or your use of the EyeTemp Properties. The foregoing release does not apply to any claims, demands, or any losses, damages, rights and actions of any kind, including personal injuries, death or property damage for any unconscionable commercial practice by a EyeTemp Party or for such party’s fraud, deception, false, promise, misrepresentation or concealment, suppression or omission of any material fact in connection with the Website or any Services provided hereunder.
18.3 Assignment. The Terms, and your rights and obligations hereunder, may not be assigned, subcontracted, delegated or otherwise transferred by you without EyeTemp’s prior written consent, and any attempted assignment, subcontract, delegation, or transfer in violation of the foregoing will be null and void.
18.4 Force Majeure. EyeTemp shall not be liable for any delay or failure to perform resulting from causes outside its reasonable control, including, but not limited to, acts of God, war, terrorism, riots, embargos, acts of civil or military authorities, fire, floods, accidents, strikes or shortages of transportation facilities, fuel, energy, labor or materials.
18.5 Questions, Complaints, Claims. If you have any questions, complaints or claims with respect to the EyeTemp Properties, please contact us at: [email protected] We will do our best to address your concerns. If you feel that your concerns have been addressed incompletely, we invite you to let us know for further investigation.
18.6 Limitations Period. YOU AND EYETEMP AGREE THAT ANY CAUSE OF ACTION ARISING OUT OF OR RELATED TO THE TERMS, THE EYETEMP PROPERTIES OR THE CONTENT MUST COMMENCE WITHIN ONE (1) YEAR AFTER THE CAUSE OF ACTION ACCRUES. OTHERWISE, SUCH CAUSE OF ACTION IS PERMANENTLY BARRED.
18.7 Governing Law; Exclusive Venue. The Terms and any action related thereto will be governed and interpreted by and under the laws of the State of New York, consistent with the Federal Arbitration Act, without giving effect to any principles that provide for the application of the law of another jurisdiction. The United Nations Convention on Contracts for the International Sale of Goods does not apply to these Terms. To the extent the parties are permitted under this Agreement to initiate litigation in a court, both you and EyeTemp agree that all claims and disputes arising out of or relating to the Agreement will be litigated exclusively in the state or federal courts located in the State of New York.
18.8 Notice. Where EyeTemp requires that you provide an e-mail address, you are responsible for providing EyeTemp with your most current e-mail address. In the event that the last e-mail address you provided to EyeTemp is not valid, or for any reason is not capable of delivering to you any notices required/ permitted by the Terms, EyeTemp’s dispatch of the e-mail containing such notice will nonetheless constitute effective notice. You may give notice to EyeTemp at the following address: PO Box 332, Saint James NY 11780. Such notice shall be deemed given when received by EyeTemp by letter delivered by nationally recognized overnight delivery service or first class postage prepaid mail at the above address.
18.9 Waiver. Any waiver or failure to enforce any provision of the Terms on one occasion will not be deemed a waiver of any other provision or of such provision on any other occasion.
18.10 Severability. If any portion of the Terms is held invalid or unenforceable, that portion shall be construed in a manner to reflect, as nearly as possible, the original intention of the parties, and the remaining portions shall remain in full force and effect.
18.11 Export Control. You may not use, export, import, or transfer the EyeTemp Properties except as authorized by U.S. law, the laws of the jurisdiction in which you obtained the EyeTemp Properties, and any other applicable laws. In particular, but without limitation, the EyeTemp Properties may not be exported or re-exported (a) into any United States embargoed countries, or (b) to anyone on the U.S. Treasury Department’s list of Specially Designated Nationals or the U.S. Department of Commerce’s Denied Person’s List or Entity List. By using the EyeTemp Properties, you represent and warrant that (i) you are not located in a country that is subject to a U.S. Government embargo, or that has been designated by the U.S. Government as a “terrorist supporting” country and (ii) you are not listed on any U.S. Government list of prohibited or restricted parties. You also will not use the EyeTemp Properties for any purpose prohibited by U.S. law, including the development, design, manufacture or production of missiles, nuclear, chemical or biological weapons. You acknowledge and agree that products, services or technology provided by EyeTemp are subject to the export control laws and regulations of the United States. You shall comply with these laws and regulations and shall not, without prior U.S. government authorization, export, re-export, or transfer EyeTemp products, services or technology, either directly or indirectly, to any country in violation of such laws and regulations.
18.12 Entire Agreement. The Terms are the final, complete and exclusive agreement of the parties with respect to the subject matter hereof and supersedes and merges all prior discussions between the parties with respect to such subject matter.
End of Terms